With increasingly diverse and complex work arrangements, companies face challenges in answering a seemingly basic legal question: Is a worker an employee of the company, or an independent contractor?
On June 13, the...more
Key Points -
On June 13, 2023, the NLRB issued a decision in Atlanta Opera tightening the legal standard for determining whether a worker is an independent contractor exempt from the requirements of the NLRA and returning...more
Key Points -
The NLRB’s General Counsel issued a memorandum providing her position on the NLRB’s recent decision in McLaren Macomb, holding that employers may not offer severance agreements with broad confidentiality or...more
Key Points -
On February 21, 2023, the NLRB issued a decision in McLaren Macomb holding that employers may not offer severance agreements with broad confidentiality or non-disparagement clauses to union and non-union...more
Key Points -
In an unprecedented step, the Federal Trade Commission has proposed a categorical, nationwide ban on non-compete clauses between employers and employees (or independent contractors). According to the FTC’s...more
1/16/2023
/ Competition ,
Employer Liability Issues ,
Employment Contract ,
Federal Trade Commission (FTC) ,
FTC Act ,
Hiring & Firing ,
Labor Reform ,
Non-Compete Agreements ,
Restrictive Covenants ,
Section 5 ,
Unfair Competition
Rising inflation, increased costs of capital and the anticipation of a downturn in the economy have caused companies in many industries to begin to implement workforce reorganizations and reductions. In making plans for...more
Key Points -
Originally poised to be one of the broadest non-compete bans in the country, Washington, D.C.’s scaled-back non-compete law became enforceable on October 1, 2022.
The new law prohibits non-competition...more
On August 11, the U.S. Centers for Disease Control and Prevention (CDC) issued updated COVID-19 guidance “to help people better understand their risk, how to protect themselves and others, what actions to take if exposed to...more
8/25/2022
/ Centers for Disease Control and Prevention (CDC) ,
Coronavirus/COVID-19 ,
Department of Health and Human Services (HHS) ,
Employer Liability Issues ,
Employment Policies ,
Health and Safety ,
Infectious Diseases ,
National Institute of Allergy and Infectious Diseases (NIAID) ,
OSHA ,
Vaccinations ,
Workplace Safety
A massive shift is underway in the relationship between workers and companies. Fueled in recent years by the COVID-19 pandemic and tight job market, the changes reflect not just evolving sensibilities of how employers treat...more
5/24/2022
/ ABC Test ,
At-Will Employment ,
Department of Labor (DOL) ,
Employee Benefits ,
Employee Definition ,
Employee Retirement Income Security Act (ERISA) ,
Employer Liability Issues ,
Employment Policies ,
Hiring & Firing ,
Independent Contractors ,
Joint and Several Liability
Key Points The EFASASHA will invalidate most contractual provisions requiring the arbitration of claims alleging sexual assault or sexual harassment. The law will also invalidate pre-dispute joint-action waivers that relate...more
Key Points -
President Biden’s July 9, 2021 executive order encouraged the FTC to exercise its statutory rulemaking authority to curtail the unfair use of noncompete agreements.
Effective March 1, 2022, a person who...more
Key Points -
The NLRB’s General Counsel issued a memorandum providing her position that the NLRA protects student-athletes who “perform services for their colleges and the NCAA, in return for compensation” and are...more
10/1/2021
/ Alston v NCAA ,
Educational Institutions ,
Employer Liability Issues ,
Fair Labor Standards Act (FLSA) ,
Name and Likeness ,
NCAA ,
NLRA ,
NLRB ,
NLRB General Counsel ,
Student Athletes ,
Unions
Key Points -
On August 12, 2021, the National Labor Relations Board’s (NLRB) recently appointed General Counsel issued a memorandum requiring reexamination of labor law doctrine in several key areas. The memorandum is...more
To account for legal developments since our last FAQ concerning employer COVID-19 vaccination policies, we provide updated answers to questions and address additional questions about discrimination, wage and hour, collective...more
8/9/2021
/ Americans with Disabilities Act (ADA) ,
Civil Rights Act ,
Coronavirus/COVID-19 ,
Employee Incentive Plans ,
Employer Liability Issues ,
Employment Policies ,
Equal Employment Opportunity Commission (EEOC) ,
GINA ,
Health Insurance Portability and Accountability Act (HIPAA) ,
Infectious Diseases ,
NLRB ,
Pregnancy Discrimination Act (PDA) ,
Public Readiness and Emergency Preparedness Act (PREP Act) ,
Reasonable Accommodation ,
Title VII ,
Vaccinations ,
Workplace Safety
Key Points -
The DOL has withdrawn a final rule published in the waning days of the Trump administration that established a multifactor test for determining whether workers are employees or independent contractors under...more
5/11/2021
/ ABC Test ,
Biden Administration ,
Department of Labor (DOL) ,
Economic Realities Test ,
Employee Definition ,
Employer Liability Issues ,
Fair Labor Standards Act (FLSA) ,
Final Rules ,
Independent Contractors ,
Multi-Factor Test ,
Wage and Hour
Key Points:
- Vaccinations for COVID-19 are picking up steam around the country as supply increases and eligibility expands.
- Now is the time for employers to think through issues raised by employee vaccination...more
4/6/2021
/ Americans with Disabilities Act (ADA) ,
Centers for Disease Control and Prevention (CDC) ,
Civil Rights Act ,
Coronavirus/COVID-19 ,
Emergency Use Authorization (EUA) ,
Employer Liability Issues ,
Employer Mandates ,
Equal Employment Opportunity Commission (EEOC) ,
Fair Labor Standards Act (FLSA) ,
Food and Drug Administration (FDA) ,
GINA ,
Infectious Diseases ,
NLRA ,
Title VII ,
Vaccinations ,
Wage and Hour ,
Workplace Safety
Key Points
- Cal/OSHA issued new emergency regulations regarding COVID-19 prevention and outbreaks in the workplace that are applicable to nearly all California employers, which were approved and became effective November...more
- The President signed the FFCRA into law on March 18, 2020. The Act will go into effect “not later than 15 days after the date of enactment” (i.e., no later than April 2, 2020). Most employers with 500 or fewer employees are...more
3/25/2020
/ Coronavirus/COVID-19 ,
Employee Benefits ,
Employer Liability Issues ,
Families First Coronavirus Response Act (FFCRA) ,
Federal Labor Laws ,
New Legislation ,
Paid Leave ,
Paid Sick Leave Act ,
Sick Leave ,
State Labor Laws ,
Tax Credits ,
Wage and Hour
Working from home may not be practical in many work environments, for example, where company tools, machinery or equipment may be required to accomplish a job. Where a company must suspend work or close a work location, the...more
3/13/2020
/ Coronavirus/COVID-19 ,
Employer Liability Issues ,
Employment Policies ,
Health and Safety ,
Infectious Diseases ,
OSHA ,
Over-Time ,
Public Health ,
Reasonable Accommodation ,
Recordkeeping Requirements ,
Remote Working ,
Rest and Meal Break ,
Sick Leave ,
Timekeeping ,
Wage and Hour ,
Workplace Safety
Employers face unprecedented challenges in addressing the spread of the novel coronavirus (COVID-19). Among the items on their ever-expanding list is that federal and state occupational safety and health regulations require...more
Employers are facing unprecedented challenges in addressing the spread of the novel coronavirus (COVID-19). Among the ever-expanding obligations is that federal and state occupational safety and health regulations require...more
- The continued spread of COVID-19 presents employers with an array of unprecedented workforce management and public health challenges.
- Decisions that employers may be called upon to make implicate a variety of...more
3/10/2020
/ Coronavirus/COVID-19 ,
Employee Benefits ,
Employer Liability Issues ,
Employment Policies ,
Health and Safety ,
Hiring & Firing ,
Infectious Diseases ,
Paid Leave ,
Public Health ,
Reasonable Accommodation ,
Remote Working ,
Risk Management ,
Salaried Employees ,
Sick Leave ,
Traveling Employee ,
Unpaid Leave ,
Wage and Hour ,
Workplace Safety
- On February 26, 2020, the NLRB issued a final rule tightening the standard for joint employment under the NLRA.
- The joint-employer standard is important because if two entities are joint employers, both must bargain...more
Key Points -
• Tight labor markets are leading courts and legislatures to closely scrutinize noncompetes and other restrictive covenants.
• If there are changes in an employee’s job and/or the company’s business, it...more
7/16/2019
/ Employer Liability Issues ,
Employment Contract ,
Fair Labor Standards Act (FLSA) ,
Hiring & Firing ,
Non-Compete Agreements ,
Rebuttable Presumptions ,
Restrictive Covenants ,
Trade Secrets ,
Unenforceable Contract Terms ,
Unfair Competition ,
Wage and Hour ,
White-Collar Exemptions
• The Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) have indicated in the past that they believe that certain agreements between employers not to poach each other’s employees are...more
4/2/2019
/ Competition ,
Corporate Counsel ,
Department of Justice (DOJ) ,
Employer Liability Issues ,
Federal Trade Commission (FTC) ,
Franchise Agreements ,
Franchisors ,
Hiring & Firing ,
Horizontal Restraint ,
Motion to Dismiss ,
No-Poaching ,
Per Se Rule ,
Rule-of-Reason Analysis ,
Vertical Restraints